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Ward Churchill takes case against CU to Colorado Supreme Court

Fired professor still wants his job back at CU-Boulder

By Brittany Anas, Camera Staff Writer

Posted:
06/07/2012 09:54:55 AM MDT

Updated:
06/08/2012 10:54:17 AM MDT

Former University of Colorado professor Ward Churchill makes conversation inside the Old Supreme Court Chambers in the Colorado State Capitol building in Denver on Thursday, June 7, 2012, before the start of his hearing. (Jeremy Papasso / Daily Camera)

DENVER -- The attorney for Ward Churchill told the Colorado Supreme Court on Thursday that the University of Colorado conducted a sham investigation in order to retaliate against the former professor for his inflammatory 9/11 essay that compared some World Trade Center victims to a notorious Nazi.

Churchill, fired by the CU Board of Regents in 2006 for academic misconduct, won a civil lawsuit against the university. But while a Denver jury found that CU had unlawfully fired Churchill for exercising his right to free speech, it only awarded him $1 -- and the judge declined to give him his job back.

Now the fired professor is appealing the judge's ruling in an attempt to regain his teaching position on the Boulder campus.

"First and foremost is that if free speech cannot find a safe haven on a university campus, this society, in general, is in decline," attorney David Lane told the justices during a one-hour hearing on Churchill's appeal in the Old Supreme Court Chambers at the state Capitol.

Lane also addressed the appeals court's finding that the university was entitled to "quasi-judicial immunity" in terminating Churchill, arguing that allowing such protection is a threat to academic freedom and tenure, with the potential to chill free speech in CU's classrooms.

But Patrick O'Rourke, CU's lead attorney, said the university was well within its rights to fire Churchill.

"If you approach this case from a First Amendment standpoint, the university wins," O'Rourke told the justices. "Here's why: It's absolutely clear under federal law that a governmental entity may discharge an employee for otherwise protected speech when then employee's conduct is disruptive to the operation of the entity."

Lane responded by saying that while the university fielded several angry complaints from citizens outraged by Churchill's speech, his employment didn't cause a disruption on campus. He said that CU simply fired Churchill to appease those angry about the professor's essay, which was protected by the First Amendment.

"It was a torch light parade -- a march by angry citizens -- to Regent Hall all but armed with pitchforks, demanding that the monster, Ward Churchill, be turned over for immediate destruction," Lane said.

Justice Greg Hobbs posed questions for both attorneys, asking O'Rourke whether a Vietnam-era professor who burned an American flag in protest of the war should be fired for upsetting others and causing outrage. He asked Lane why CU should be forced to rehire Churchill if investigations found academic fraud in his work.

After the hearing, Churchill avoided questions from reporters, saying he plans to comment on his appeal after the Supreme Court issues a ruling in the coming months.

Lane said Churchill has been teaching, traveling and speaking since he was dismissed by CU.

The Colorado's Court of Appeals in November 2010 upheld then-Denver Chief District Judge Larry Naves' decision to deny giving Churchill his job back at CU, where he was a faculty member in the Ethnic Studies Department who had earned tenure, higher education's coveted job protection.

CU officials say they are confident that the Supreme Court-- like the lower courts that already have heard the case -- will side with the university.

Prior to Churchill's firing, CU faculty members charged with poring over the professor's body of work reported they found patterns of plagiarism, made-up facts and other violations they said were deliberate.

Churchill, in his lawsuit against CU, alleges the real reason he was fired was because of his controversial essay, written on Sept. 11, 2011, that ignited national furor -- but not until 2005. In that essay, Churchill referred to some World Trade Center victims as "little Eichmanns" -- a reference to Adolf Eichmann, who helped Hitler carry out plans to exterminate Europe's Jews during World War II.

Former University of Colorado professor Ward Churchill enters the Colorado State Capitol building in Denver on Thursday, June 7, 2012, prior to his appearance before the Colorado Supreme Court. (Jeremy Papasso / Daily Camera)

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